Abstract

This paper highlights the usually silenced voices and perspectives of surrogate mothers, the legal impact of cross-border surrogacy arrangements on intended parents, and the vulnerability surrounding the child(ren) born of surrogacy arrangements. Using desk-based socio-legal human rights research methodology, this paper examines not only the legal complications in cross-border surrogacy arrangements but also the human and social aspects of such arrangements, which better showcase the significance of this topic in a global setting. This paper sheds light on multiple legal, ethical, and practical concerns that arise in surrogacy arrangements, such as the commodification of the children born, seeing surrogate mothers as manufacturers, and the emphasis on genetic links between the child and the intended parents which may place the child at risk of abandonment. The authors of this paper advocate for a global regulation on surrogacy which protects the best interests of each of these key stakeholders. Given the boom in cross-border surrogacy, until a global dialogue takes place, any national law or guideline will not in itself be sufficient in protecting the vulnerable or ensuring gender equality.

Introduction

According to the Yale Medicine website, ‘surrogacy is a process in which a woman carries and delivers a child for a couple or individual’ (Yale Medicine, n.d). At the outset, it is important to understand the different types of surrogacies. One such type of surrogacy is commercial or compensated surrogacy, defined as ‘a practice that involves an intended parent(s) contracting with a person to act as a gestational surrogate and attempt to become pregnant, carry to term, and deliver a child(ren) using an embryo(s) created via IVF and to receive payment beyond reimbursement for ‘reasonable’ medical expenses’ (Centre for Reproductive Rights, n.d). There is also partial commercial surrogacy which involves remuneration for the essential expenses of the gestational period. On the other hand, there is altruistic surrogacy which, as the term ‘altruistic’ denotes, is done without any payment. Additionally, there are two other types of surrogacy: gestational and partial. In gestational surrogacy, the intended parents’ embryo is transferred into the surrogate’s womb, giving the child a direct genetic connection with the commissioning parents. However, in partial surrogacy, only the commissioning father has a biological link with the child and the surrogate who is thus donating one of her eggs.

When considering the importance of regulating surrogacy, especially in view of its complexity, it is of the utmost importance to acknowledge the circumstances in which its practice is forbidden and/or for which a complete ban is advocated, perhaps due to theological reasons (Horowitz, 2024). This may include the traditional family dynamics of the country and how surrogacy could be viewed as a ‘threat to the image of mother’ (Legras, 2015) and the psychological impact of surrogacy on children and surrogates. These intricacies are evidenced in the ever-changing laws concerning surrogacy. In many religions, surrogacy is frowned upon as it is ‘regarded as being contrary to basic moral principles and human dignity’ (MM Tieu, 2008). Multiple nations such as Germany, Sweden and Spain prohibit surrogacy as it is viewed as an exploitation of the surrogate’s body. Some patriarchal societies view surrogacy as imposing an imbalance on traditional values and concepts of familial hierarchy. In commercial surrogacy, for example, the surrogate mother receives money in exchange for her service, which may result in her out-earning the paternal figure of the household. Nevertheless, due to its typically high economic yield, surrogacy is sometimes the only option for impoverished women to support themselves and their families. 

This paper will emphasise the different ethical issues that may arise from different forms of surrogacy arrangements, highlighting how different stakeholders are respectively affected by country-specific surrogacy laws. The first section of this paper will highlight the consequences of surrogacy laws on the surrogates. This section will lay emphasis on the unheard voices of surrogates and the lack of consideration given to any inputs they may have regarding surrogacy laws, which effectively leaves them in a vulnerable position. The second section will focus on the intended parents, drawing attention to the legal obstacles and ethical issues in cross-border surrogacy arrangements. The third and final section will explore the consequences of disunited surrogacy guidelines for children born from arrangements.

Research Aims and Objectives

• Emphasise the different ethical issues such as gender equality that arise due to different forms of surrogacy arrangements.
• Highlight how different stakeholders (surrogates, intended parents, and children born out of surrogacy arrangements) are impacted by country-specific surrogacy laws.
• Demonstrate, using case studies, the importance of universal legal regulations on surrogacy as a way of avoiding previous ethical and legal complications.
• Advocate and prove the need for an international dialogue and consensus on how surrogacy should be approached.

Methodology: Using Desk-based Socio-legal Human Rights Research

It is not possible to understand surrogacy and its ethical implications without studying the interaction between the law and the social context within which it is operating. In the context of surrogacy laws, this interdependence and indivisibility between the law and social context is clear. Therefore, this paper has been framed using an interdisciplinary, socio-legal human rights methodology. Socio-legal human rights research has been defined as research ‘which engages with a theoretical and analytical framework of legal knowledge and enquiry set in the social context of research’ (Peck, 2023). This paper not only incorporates the legal aspects of surrogacy in different nations, but also studies the direct and indirect impacts on various stakeholders, including the surrogates, commissioning parents, and children born out of surrogacy arrangements.

I. Surrogates on the Chopping Block

Surrogates are arguably the most at-risk parties within a surrogacy agreement, yet they are often left at the mercy of a country’s ever-changing reproductive labour laws. Depending on the nation(s) involved in the arrangement, the terms used to describe surrogates vary drastically, and effectively convey the specific society’s stance towards the subject. ‘Babies to buy’ is how commercial surrogacy was referenced in a recent Cambodian case where ‘about 30 surrogates, all pregnant, […] were nabbed in a police raid on an upmarket housing complex in Phnom Penhin’ (Beech & Cohen, 2022). In 2016, the Cambodian Ministry of Justice gave ‘a ‘Prakas’ stating that “[s]urrogacy, one of a set of services to have a baby by Assisted Reproductive Technology, is banned completely.” The single line in the Prakas was both brief and vague… but it has effectively ended surrogacy in Cambodia for Western couples’ (Houghton, n.d). However, due to the lack of further elaboration by the Cambodian government, as well as the opportunity for high financial gain, commercial surrogacy continued, albeit in a limbo-like grey area of uncertainty. This uncertainty has left surrogates particularly vulnerable in the practice of commercial surrogacy. After this police raid, the surrogate mothers were sentenced to prison for charges of human trafficking which ‘has imposed the heaviest costs on the surrogates themselves… [n]early all of those arrested in the 2018 raid gave birth while imprisoned in a military hospital, some chained to their beds’ (Beech & Cohen, 2022). Surrogate mothers who were initially thought to be protected by their country’s reproductive laws, were forced by their government to raise the surrogate children themselves in exchange for the suspension of their sentences. The very service meant to help aid their financial troubles resulted in ‘another mouth to feed,’ a position they were pushed into by their government out of fear of imprisonment and losing their families. Surrogates, unlike the commissioning parents or gamete donors, are often more easily tangled in the legal web. They cannot simply destroy contracts, deny their involvement in the arrangement, or claim to be unaware when reproductive laws are unclear or suddenly shift. The proof is the child within their womb, a bright red flag labelling them and their reproductive services as criminal. Despite the extremely high stakes that surrogate mothers face, their voices, views, or circumstances are often the last, if ever, to be taken into consideration when these laws are made. Even then, ignorance and over-simplifying appears to take hold of these legal decisions, with a Cambodian official arguing that ”Surrogacy means women are willing to sell babies and that counts as trafficking’ (Beech & Cohen, 2022).

Gender Equality Concerns with Altruistic Surrogacy

Paternalistic state intervention regarding commercial surrogacy is not the only way that surrogates are left vulnerable or exploited. The problem of exploitation is sown just as deeply in altruistic surrogacy agreements, which often take place between family members. In India, this is the only permissible type of surrogacy due to ‘a Surrogacy (Regulation) Bill [which] was abruptly introduced in August 2016 that banned CGS [Commercial Gestational Surrogacy] altogether… [b]elieving the key problem to lie in the “commercial” element of the process, the Indian state determined to make surrogacy permissible only if performed altruistically… [t]his, according to the Bill (now 2021 Act), would “prohibit the potential exploitation of surrogate mothers”‘ (Parry, Ghoshal, 2020). At face value, this decision may appear to take a feminist approach to reproductive law, a rarity in this field, advocating for women’s bodies to not be viewed as pay-per-use commodities. But, as Amrita Pande discusses in her work on the ‘domino effects of the ban’ on commercial surrogacy in India, ‘expecting a woman to engage in such emotional, stigmatized and embodied work for free is, in itself, exploitative’ (Pande, 2020). In a deeply patriarchal society, such as India, where gender roles and traditions heavily dictate and influence family dynamics, women are often subjugated and ‘pushed to be altruistic’ by their male counterparts, and even by their female elders. Removing remuneration does not equate to removing exploitation. The emotional pressure that many altruistic surrogates feel the need to succumb to out of a sense of familial duty is just as, if not more, damaging than commercial surrogacy. These women are intentionally exploited by their government’s laws, evidenced in the surrogacy Bill’s (now Act’s) stipulation that ‘only Indian women aged 25-35 years, with at least one existing child, and who are closely related to the intending couple are eligible to perform a surrogacy altruistically on their behalf’ (Parry, Ghoshal, 2020). The women must also be married and are restricted to being a surrogate only once. It is not until they have fulfilled their societally imposed female duty of producing a biological child for herself and her husband that she is able to use her reproductive abilities for less traditional purposes. Emotionally coercive arguments from infertile family members are then given soil to grow such as, ‘you already have a child of your own,’ or ‘I want the same joy that you have, why can’t you provide that for me?’ Rightfully so, Pande phrases the outlawing of commercial surrogacy and the stipulated permissibility of altruistic surrogacy to be a ‘naive celebration.’ The law that claims to have its motives in line with sheltering women from exploitation is the same law that makes room for an already oppressed group to be further subjugated, this time by those closest to them and with whom they may feel a strong societal obligation to appease. Instead of regulating when and for whom a woman is allowed to become a surrogate based on whether she has already fulfilled her traditional role in society, paternalistic state intervention, if truly in the best interest of preventing female exploitation, would also focus on monitoring and screening for coercion from family members which hides under the veil of ‘altruism.’ Only once the voices of these surrogate mothers are heard and carefully considered can any form of surrogacy truly claim to align with women’s best interests.

Financial Backlash on Surrogates

In countries such as India where the laws on surrogacy have changed drastically and seemingly overnight, the surrogates are once again the ones who are almost immediately caught in the crossfire. Although it is difficult to come across official numbers, ‘a UN-backed study in 2012 by the Delhi-based Sama Resource Group for Women and Health estimated India’s surrogacy business was worth more than $400 million a year’ prior to its ban (Bagri/Anand, 2021). “If they stop commercial surrogacy, it is not good for poor people like me,” says Savita Vasava, a 34-year-old mother of three from Dakor, a small town 21 miles from the Akanksha Hospital. She is about to be a surrogate for the second time to save up for her daughter’s wedding. She is currently waiting to hear if the embryos recently transferred into her uterus have resulted in a pregnancy. “It is one way for us to make a better life. If we work, day and night, we cannot save this kind of money”‘ (Pande, 2021). Similarly, ‘Trina, a former gestational mother, and now a surrogacy “coordinator” has a double degree in Law and Commerce, but these degrees were not enough to buy a house. Trina has been a gestational mother twice and delivered two sets of twins for intended parents from the US and the UK. She used the money to buy a house. She is now an employee at the clinic and manages the lives of the 79 gestational mothers housed in 12 rooms in the basement of the clinic.’ (Pande, 2021). Now that India has gone from an international commercial surrogacy hub to solely permitting altruistic surrogacy, women like Savita and Trina have been stripped of what was their only way of earning a decent wage with little to no help or guidance. They are then faced with the choice to continue with their work illegally and follow the reproductive labour market underground, or to search for work elsewhere and brave the society which left them with no option other than to become commercial surrogates.

Surrogate Mothers are People First, Surrogates Second

Surrogacy, both commercial and altruistic, legal and illegal, is a practice which inherently includes many complexities. When legal decisions are made without much consideration for the primary stakeholder involved, it naturally follows that surrogates will continue to be the victims of coercion, exploitation, and cyclical poverty. As with most things, imposing a ban will not stop the practice from happening; it will only be forced to operate underground with less regulations and less support for the vulnerable people involved. Without a feminist perspective on the many issues which arise, it is almost impossible for women to be viewed as anything more than objects or baby-making machines. In Imogen Goold’s ‘Surrogacy: Is there a case for legal prohibition?’ (2004), she cites that ‘Raymond argues that surrogacy “reinforces the perception and use of women as a breeder class…” This is not symbolic or intangible but strikes at the core of what a society allows women to be and become’ (Goold, 2004). For these women and their best interests to be properly protected, the traditional misogynistic view that the female gender is something to subdue, take advantage of, or control, must be discarded. Additionally, their voices must be heard, and not just through an echo chamber of shame and exploitation. It is not possible to help the vulnerable without first empathising with and understanding their vulnerability. This paper has adopted a socio-legal human rights research methodology specifically to allow the all-too-often silenced voices of these women to be heard. Only when this becomes the rule and not the exception can any government claim to truly have the best interests of surrogate mothers at heart. Until this happens, any laws or reservations made are simply ‘feminist’ conjecture.

II. Intended Parents: Understanding their Experiences through Case Studies

Intended parents are another key stakeholder significantly affected by surrogacy. Countries with different laws concerning surrogacy assign varying importance to intended parents. In India, for instance, commercial surrogacy is prohibited, and only altruistic arrangements are permitted. Furthermore, the criteria for individuals eligible to have children through surrogacy are stringent and clearly defined. Only single Indian women who are divorced or widowed between the age of 35 to 45 are qualified to enrol in a surrogacy arrangement, as well as couples of an Indian man and woman above the age of 21 and 18 respectively. Thus, Indian surrogacy law ‘reinforces typical patriarchal values of society by assuming the institution of heterosexual marriage as the basis for parenthood, which goes against the fundamental rights of the LGBTQ+ population, single men and women’ (Babbar & Sivakami, 2022). This underscores the considerable difficulty intended parents face in even being considered for a surrogacy arrangement without global consent. 

Surrogacy is prohibited in most European countries. In Mennesson v France and Labassee v France, the European Court of Human Rights (ECtHR) held that because there was no European consensus on surrogacy laws, France had a wide margin of appreciation and the ‘court can accept that France may wish to deter its nationals from going abroad to take advantage of methods of assisted reproduction that are prohibited on its own territory.’ The ECtHR determined that ‘non-recognition in French law of the legal parent-child relationship between children thus conceived and the intended parents’ does not violate the intended parents’ right to respect for private life under Article 8.’ However, the court recognised the impact of non-recognition on the child, weighed the best interests of the child, and declared that the French law violated the right to respect for private and family life of the child under Article 8 ECHR. Therefore, while the ECtHR did not ‘impose an obligation on the national States to regulate surrogate agreements nor to recognize them for the sake of the parents’ family life but imposed the very same obligation for the sake of the children’s private life’ (Ignovska, 2017). The key takeaway from the case is that, had there been a European consensus, these cases could have been better managed. This shows how important international regulation of surrogacy laws really is. Ensuring that participants enter a surrogacy relationship with clear, pre-established, and globally applicable guidelines must be a top priority to establish healthy relationships between the involved parties. 

While the child got to live with their intended parents in the French cases, the Italian case of Paradiso and Campanelli v. Italy brought a different result. Here, a married couple decided to conceive a child through surrogacy in Russia. Despite the planned genetic connection, the new-born child was not related to either one of the two intended parents. The child was then taken into foster care after having no official identity for more than two years. The ECtHR later decided that, considering the child’s evident emotional attachment to the foster family with whom he had been placed, a finding of violation in the applicants’ case should not be construed as requiring the state to return the child to the intended parents. Nevertheless, the court’s decision was based on the lack of knowledge of Russian surrogacy laws, which led them to the wrong conclusion of an inaccurate birth certificate of the child (Ignoyska, 2017). Ignoyska aptly argues that unlike the French cases, the margin of appreciation of the national law prevailed over the best interests of the child in the Italian case. She argues that ‘this different treatment is because of the absence of the genetic link between the child and Mr. Campanelli that resulted in, initially, non-recognition of the birth certificate, later, in removal of the child while proclaiming him as abandoned, and lastly, in disabling the applicants to act on ‘their’ child’s behalf during the Strasbourg proceedings.’ This is in contrast with other ECtHR cases that ‘slowly but surely recognizes greater protection of de facto families instead of merely families linked through genetics’ (Ignoyska, 2017). This can be compared with the aforementioned Indian surrogacy legislation, where only certain kinds of families (heteronormative families) were similarly recognised. Standardised surrogacy laws and a global consensus on cross-border surrogacy arrangements will prevent such cases in the future. 

Another case from Australia shows why global guidelines are crucial. In 2014, a married Australian couple had twins born through surrogacy in December 2013 in Thailand. One of the children, however, was born with Down syndrome. The surrogate mother claimed that the intended parents rejected Gammy due to his illness and went back to their home country with only the girl, Pipah. Despite the surrogate mother’s attempts to have the girl returned to Thailand and the discovery that the intended father was a convicted child sex offender, the court ruled that Pipah should stay with the family in Australia (BBC, 2016). This case highlights the need for basic standard checks that need to be taken before an intended parent is deemed fit for having a child through surrogacy arrangement. In transnational surrogacy, it is important that countries work with each other to ensure that references and basic checks on intended parents are carried out. Another complication in the Australian case was that it was claimed that the intended parents did not abandon Gammy and in fact, it was the surrogate who refused custody. Justice Thackray, for instance, stated that the Australian couple ‘suffered great humiliation and enormous stress for things they did not do’ (ABC News, 2016). The high-profile case led to a ban on foreigners paying for surrogacy in Thailand. Today, only couples with at least one Thai partner that have been married for at least three years can sign up for surrogacy (BBC, 2016). Apart from the need for basic standard checks in transnational surrogacy, this case also highlights the practical, legal, and ethical implications when surrogacy contracts fail, signifying a need for a global consensus on how such contracts are to be implemented. 

A recent positive example from Germany signifies that it is possible to manage such cross-border surrogacy cases. In Germany, surrogacy is forbidden due to it being viewed as ‘a criminal offence to perform artificial insemination on a woman who is willing to permanently relinquish her child to a third party after giving birth (surrogate mother) or to transfer a human embryo to her’ (LSVD, 2021). Even though there is ‘no criminal liability of the surrogate mother and the intended parents’ (LSVD, 2021), these legal requirements make it more difficult for individuals with a desire to have children to fulfil it by unnatural means. In 2023, however, there was a breakthrough in a case where a gay couple was recognised as the legal parents of a child born out of surrogacy. After the intended fathers had a child through surrogacy in Mexico, they applied for a subsequent certification of their child’s birth certificate in Germany, which got rejected. Instead, the paternity of the genetic father and the maternity of the surrogate mother was recognised, against which the family then took legal action to have both fathers accepted as the legal parents of the new-born child. It was later decided that both fathers have the parental rights and status over their child (Schlun & Elseven Rechtsanwälte, 2023). This case was not only an achievement in terms of rights for intended parents to be viewed as the actual caretakers of surrogate children, but it also shows that ‘same-sex parenthood is socially equivalent if the parenthood is permanent and legally established’ (Schlun & Elseven Rechtsanwälte, 2023), setting a model for a global, unified law on surrogacy, regardless of the intended parents’ sex or gender. This has great potential as it may help transcend conventional parenting models. In surrogacy arrangements, where ‘because of reproductive technology choice and explicit reciprocal commitment are the origin of a given child’s creation, parental status could instead be assigned on a basis that is equally accessible to both genders: intention. Such an experiment would be positive and instructive for the future of children and adults alike’ (Shultz, 1990).

Intended Parents’ Surrogacy Journeys

As surrogacy becomes more relevant, examining the surveys which highlight the experiences of intended parents provides important insights. Reproductive BioMedicine Online studied 64 reports of intended parents and surrogates in twelve different countries. The insights they provide can help develop global guidelines.

In India, intended parents claimed their experiences were shaped with some difficulties, as they were not fully informed of all the costs they could possibly incur after childbirth. Furthermore, intended parents stated that when they failed to conceive a surrogacy pregnancy, they ‘experienced a failure in addition to the losses they might have incurred during their previous fertility treatments.’ While their grieving was recognised by clinics in India, their grief was not given any material consideration (Kneebone, Beilby & Hammarberg, 2022). 

Studies of Australia found that laws prohibiting commercial surrogacy appear to have little effect on intended parents pursuing surrogacy arrangements, calling once again for a global consent instead of a ban. Furthermore, Australian lesbian couples seeking surrogacy in India before the changes of surrogacy laws stated that they felt that negative experiences with support outweighed positive ones, with many participants viewing the clinic as either profit-driven or overly clinical in its approach (Kneebone, Beilby & Hammarberg, 2022).

An Italian study examined the motivation of single intended fathers for surrogacy, stating that most individuals opted for surrogacy because they desired a genetic connection to their child and believed that surrogacy offered greater legal security compared to adoption. Another study stated that intended fathers experienced a loss of control over the pregnancy, yet the surrogate helped them establish an emotional bond with their developing child. Intended fathers often saw the surrogate as an ‘aunt’ (Kneebone, Beilby & Hammarberg, 2022).

Overall, both positive and negative experiences mentioned in these studies demonstrate the complexities and challenges that arise through transnational surrogacy arrangements. Establishing a global consensus and comprehensive legal regulation for surrogacy will guarantee that the rights of all parties involved, including the intended parents, are protected. By establishing clear guidelines and ethical standards, these regulations would ensure that surrogacy arrangements are conducted in a fair and transparent manner, and with respect for legal and emotional considerations across borders.

III. Mapping the Impact on Children Born through Surrogacy

The purpose of going through this arduous process of surrogacy is to have a child. New-borns are ‘vulnerable and dependent’ (Debra Satz, 2010), meaning they are unable to fend for themselves and be able to guarantee their upbringing without external support. Although this may seem obvious, many legislations do not consider the surrogate-born child’s best interests. Article 8 of the European Convention of Human Rights (ECHR), however, protects ‘children’s right to private and family life’ (Isailović, 2014) in the narrowest terms, and seeks to defend the best interest of the child to guarantee their safety. In some transnational surrogacy cases, where ‘one or more of the parties are nationals of different nation states’ (Barbara Stark, 2011), the child born in a surrogacy-accepting state, from parents whose nations are surrogacy-averse, does not belong to any country and thus places the child in a complex legal situation. Some of the outcomes of this could range from a long legal battle to define the infant’s nationality to removing the child completely from the intended parents and relinquishing them for adoption. There are also cases where the genetic links between the child and the intended parents or the surrogate are not found, leaving the child parentless in some countries. The psychological effect on the abandoned child could impact the entirety of their childhood and potentially extend into their adulthood. 

This section aims to explore the impact of surrogacy on children born from such arrangements, with an emphasis on transnational surrogacy and the ethical implications on commercial arrangements, as well as the significance of genetic links with the child, and finally the psychological effects on children born from a surrogate mother.

Commercial Surrogacy: Treating Children as Commodities?

Commercial surrogacy arrangements have been widely debated and are questioned by a multitude of groups (such as religious entities or activist societies) as it highlights ethical issues as well as concerns for the safety of the child. One moral debate is whether to consider commercial surrogacy a type of labour, or the child as a ‘product’ of said labour. The direct and blatant language used when considering the infant, a ‘commodity’ (Tieu, 2008), suggests a superficial and industrial connotation, which should not apply to the conception of a human being. The objectification of the child leads to an ethical debate where the intended parents may wish to not have the infant perhaps because they were born with a disability. ‘Several high-profile cases […] directed their surrogates to terminate foetuses based on a diagnosis of foetal abnormality’ (Drakiak, 2021), thus this is not an unusual occurrence in surrogacies in some countries. Before the intended parents decide to start surrogacy, they must understand that they have the responsibility to commit to the child, regardless of their ability or disability. Hence, ‘the father (or prospective mother) cannot, for example, simply destroy or abandon the child. He (or she) is bound by the same norms and laws that govern the behaviour of any child’s biological or adoptive parents’ (Satz, 2010). Once an infant in this situation is born, they are in acute vulnerability, as the family may not accept the child because of her/his disability. This could result in abandonment or adoption, impacting the psychological state of the new-born child, and a likely resentment towards the commissioning parents.

Transnational Surrogacy: Vulnerable Children Caught in Legal Battles

In transnational surrogacy, the main issue concerns how different jurisdictions act upon surrogacy. As aforementioned, transnational surrogacy is when the various parties involved are from different nations, which may cause complications as to the nationality of the child once they are born. The first example is Baby Manji, a baby girl born in Anand, India, through a surrogate mother, to Japanese parents (Ikufumi and Yuki Yamada). This case, which caused tumult and posed serious questions about the regulations concerning surrogacy in the world, started before Manji’s birth. Yuki and Ikufumi filed for divorce ahead of the conception of the child, and Yuki, the mother, refused to accept the infant and disowned her as a result. For Manji to possess a Japanese passport, the Japanese embassy in Delhi required her to first issue an Indian passport, but this could only be done in ‘conjunction with the mother’s’ (Parks, 2010). As neither the biological nor the surrogate mother wanted to have custody of the child, Manji was now nation-less and mother-less. To her great fortune, her paternal grandmother, Emiko Yamada, went to India for the duration of the trials to define Manji’s future, thus becoming a great figure in this case. One of the facets of the discussion this issue raised, was the conditions the girl was left in and how this is a failure of systems around the world. Jennifer Parks wrote, ‘not only were her rights to citizenship under threat […] but so was her right to be cared for, to be an individual of particular concern’ (Parks, 2010). One of the main conclusions one can draw from this peculiar case is the necessity of a structured system for surrogacy. The situation Manji was in was a product of a problem that occurred far before she was born and affected her after birth, but there were not the appropriate measures to protect her in the case that neither the parents nor the surrogate mother was willing to gain custody over her. What this case shows, is the necessity of a well-established groundwork the parents must go through before starting the surrogacy process. Without it, the child being born, like in Manji’s case, is vulnerable to a myriad of problems that occur with the intended parents or with the nation’s legislation. 

A focus is drawn to the parents, as once the process of having the child, which as established earlier, is the main goal in the first place, ‘[t]here is a responsibility to that child-to-be, an obligation to build a narrative and family history for it, which is associated with the child long before the point of birth’ (Parks, 2010). In her article, Parks suggests a measure to guarantee that other situations like Manji’s do not repeat, and that is, ‘the commissioning couple should be present as much as possible during the pregnancy’ (Parks, 2010). Although this could help the parents gain a sense of what they have committed to, with transnational surrogacy, it is a lot harder to have proximity to the surrogate mother during the nine months due to a locational issue. However, one possible solution could be to use newer technology, such as video calls, to maintain healthy relations with the surrogate mother, avoid the ostracisation of the mother which often happens in surrogacy cases, and build stronger roots before the birth of the child.

The second transnational case at hand also exemplifies how the genetic linkage factor between the parents and the child alters depending on the country’s surrogacy laws. While the earlier section mapped the impact on intended parents in the case of Paradiso and Campanelli v. Italy, this section focuses the attention on the child. To re-emphasise, this case consisted of an elderly couple, who had been looking to have a child, but were unable to conceive even after the process of in vitro fertilisation, so they decided to hire a company that guided them through reproductive tourism in Moscow, Russia. There, a commercial surrogate would be ‘conceiving an embryo from anonymous sperm and oocyte donation’ (Ignovska, 2017), a procedure legalised in Russia but prohibited in Italy. This procedure does not possess any genetic relation between the infant and the commissioning parents, so the Italian state began an inquiry for ‘”altering civil status” and forgery’ (Ignovska, 2017) of the new-born child. The child was placed into the foster care system for two years, and the foster family intended to adopt him. The Italian Court aimed to defend the best interest of the child, which meant leaving the child with the foster family, as the infant had already created a bond with the parents. This case illustrates two things which are crucial in understanding why having a unified surrogacy guideline is necessary in the modern-day world. First, since the legislation regarding surrogacy in the parent’s country and the country where the surrogacy took place were different from each other, it is possible to see how the lack of consistency between the two jurisdictions placed the child in a vulnerable position, as the infant was officially abandoned and then placed into foster care. In Italy, ‘the margin of appreciation of the national law prevailed over the best interests of the child principle’ (Ignovska, 2017), in other words, the country prioritised following the national laws instead of looking at the best results for the child, even if that meant the parents receiving punishment for having done a procedure prohibited in their place of origin. Secondly, the main reason why the Italian state did not recognise the child as the commissioning parents’ was entirely due to an ‘absence of the genetic link between the child and Mr. Campanelli’ (Ignovska, 2017). Thus, the best interests of the child and whether the child could be with the intended parents was determined and strongly influenced by the fact that no genetic link with either of the intended parents was found. As discussed in the last section, this glorifies the traditional family structure, which is rooted in genetic connection, and refuses to recognise different kinds of families.

Mapping the Psychological Effects on Children

Finally, one must consider the psychological effects on the child born out of a surrogacy arrangement. Although there are not many accounts of children born out of arrangements, as its occurrence only dates to 1976 (Worldwide Surrogacy, 2021), there are some conclusions one can make based on the cases mentioned previously. The lack of support from governments regarding surrogacy causes the safety of the child to be at risk, possibly leading to adoption or abandonment. Such a course of action affects the child’s early stages of development, thus impacting the foundations of their lives. What some analysts suggest is building stronger relations with the surrogate mother, as ‘the commissioning couple does not just enter into a contract with the surrogate: they embark on a relationship with her’ (Parks, 2010). By doing this, the couple opting for transnational surrogacy, for example, will be avoiding the objectification and ostracisation of the surrogate mother, but will also help the child gain a more sensible and clear understanding of their origins and birth story. This is crucial as ‘knowledge about having been born as a result of surrogacy is an important aspect of a child’s identity’ (O’Callaghan, 2021).

Conclusion

Having now discussed the different ethical implications regarding the various stakeholders involved in surrogacy, such as intended parents, surrogates and the child, it becomes clear that a lack of global guidelines can lead to increased vulnerability of those involved. One clear example is how in commercial surrogacy, the children born are seen as commodities and surrogates as manufacturers, which can cause intended parents to view the child as a product that can be returned if it does not fit their idea of perfection. In transnational surrogacy agreements, such as the aforementioned Cambodian case, unclear or constantly changing guidelines prove to create difficult-to-navigate grey areas which can lead to devastating and unfair consequences for the stakeholders involved. The case of Paradiso and Campanelli v. Italy shows how a global consensus is necessary to guarantee the safety of all parties involved. Nevertheless, as seen in the German case, where a gay couple was recognised as the legal parents of their child conceived through surrogacy, we can conclude that universal regulations, which focus on the wellbeing and protection of the surrogates, intended parents and children involved, are fundamental to avoid the repetition of such cases in the future.

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